The upshot of the argument so far is that religion is not morally distinctive as compared with secular doctrines. This conclusion has normative implications for both religious exemptions and constraints on the types of purposes that can serve as legitimate justifications for state action. It is useful, however, to clarify what has (and has not) been established up to this point before turning, in Part III, to the question of how religion’s lack of distinctiveness vis-à-vis secular doctrines ought to bear on our attitudes toward the Religion Clauses.
With respect to accommodations, the claim that religion is not distinctive narrows but does not fully determine the range of morally permissible options. As a general matter, the state can treat religious and secular doctrines equally either by granting or denying exemp- tions for both. What it cannot do is single out religion generally for exemptions while denying them to those with comparable secular claims.177
Establishing moral parity between religious and secular doc- trines is not sufficient, however, to decide whether accommodations must be granted in the first place. Nothing in the argument above re- solves that more fundamental question. All that can be said here is that the set of permissible options with respect to accommodations is restricted to those consistent with the demand for equal treatment. Within that set, considerations of equality between religious and secular doctrines are indeterminate.178
They must be supplemented by
176 Although skeptical theories raise serious challenges to any account of religious free- dom, I cannot address them here. For leading skeptical views, see generally Steven D. Smith,
Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (Oxford 1995); Stanley Fish, The Trouble with Principle (Harvard1999). But see Greenawalt, 2 Religion and the Constitution at 433–50 (cited in note 90)(distinguishing and rejecting various forms of skepticism about the Religion Clauses).
177 Of course, it may be difficult in some cases to determine when religious and secular
claims are comparable. All theories that deny the distinctiveness of religion face this boundary problem. For present purposes, however, it is enough to say that at least some secular claims are comparable to at least some religious claims. The arguments in Part II are, of course, aimed at establishing that conclusion.
178 This is an instance of what Gerald Gaus has called “nested indeterminacy,” which oc-
curs when there is a conclusive reason, R, for selecting a policy from a set of mutually exclusive options {P1, P2, P3}, but where R does not select uniquely from among the options in the set. R cannot tell us which policy to choose, but it can rule out policies {P4, P5, . . .}, which are not
within the range of permissible options. Thus, Ris not completely indeterminate; rather, inde-
claims about how much weight is properly given to the value of al- lowing citizens to act according to their religious or secular doctrines, even when the state may have varying levels of conflicting interests.179
A similar indeterminacy might be thought to apply in the con- text of legal justification under the secular purpose doctrine. If reli- gious and secular doctrines must be treated equally, two conclusions might follow: either (1) allow purposes based on both types of doc- trines to serve as sufficient grounds for political and legal decisions, or (2) deny that both doctrines can serve this function. But it is a mis- take to see indeterminacy in this context. As I have argued above, the first option, which would eliminate the secular purpose require- ment, is normatively unattractive. The only plausible alternative is to pursue some version of the second option, which would expand the secular purpose doctrine into a broader constraint on the types of reasons that justify state action.
In the context of both accommodations and legal justification, then, there are normative and epistemic grounds for going beyond the category of religion, at least when that category is defined in terms of doctrines based on belief in a transcendent or supernatural authority, which is a basic feature of religion within all but one of the theories described above.180
Framed in such terms, religious beliefs and practices do not as a general matter warrant more (or less) fa- vorable treatment than those which follow from secular doctrines.
Although this conclusion is stated at a high level of abstraction,
it provides an answer to the question: “Is religion special?” As a
normative matter, the response must be, “No.” But as a legal and
constitutional matter, religion must be special. The Religion Clauses
of the First Amendment were framed in terms of religious free exer-
cise and a prohibition on the establishment of religion. If religion is not special, but if it must be as a matter of law, then our moral and legal views are at odds with each other. If this were a matter of easily modified statutory law, or an issue of relatively little importance,
Liberalism156 (Oxford 1996) (discussing the idea of nested indeterminacy); Schwartzman, 3 Polit Phil & Econ at 197–98 (cited in note 42)(same).
179 Compare Amy Gutmann, Identity in Democracy 151–91 (Princeton 2004) (arguing
against singling out religion for special treatment while defending legal exemptions for claims
of conscience), with Leiter, Why Tolerate Religion? at 92–133 (cited innote 14) (arguing
against singling out religion but rejecting legal exemptions for claims of conscience).
180 The exception is inclusive nonaccommodation, which attempts to avoid specifying a
definition of religion by denying that the distinction between religion and nonreligion is moral- ly or epistemically relevant for deciding most legal controversies. SeeChristopher L. Eisgruber
and Lawrence G. Sager, Does It Matter What Religion Is?, 84 Notre Dame L Rev 807, 809
(2009) (“[W]here competing theories about the definition of religion become controversial and interesting, they also become irrelevant to constitutional law.”).
then perhaps we could downplay this tension. But the problem in- volves constitutional provisions of the first importance, and so the conflict is not so easily dismissed. If our normative views take us be- yond religion, then it is necessary to confront the question of what our attitudes ought to be toward constitutional texts defined in terms that are no longer morally sufficient.
III. AGAINST THE RELIGION CLAUSES?
If one accepts that religion is not special as a normative matter, then there are basically two ways to respond to the conflict between that view and the law. The first is to reject the law as morally defec- tive and argue that it should be changed to remedy its failures. The second is to attempt some form of reconciliation with the law by showing that it can be interpreted in ways that either diminish or dis- solve the underlying conflict. This Part explores both options— rejection and reconciliation—although it does not state a preference between them. Which option is most attractive will turn largely on one’s theory of constitutional interpretation. To be clear, I do not adopt a particular theory here. For present purposes, I remain agnos- tic on the question of whether original meaning serves as a norma- tive constraint on legal interpretation. Instead of taking sides on that issue, my aim is to show what follows from rejecting the distinctive- ness of religion if one adopts an originalist (or nonoriginalist) theory for determining constitutional meaning. In its general form, my claim is that accepting originalism (or at least most versions of it) commits one to certain moral conclusions about the Religion Clauses, namely, that they are morally defective, whereas accepting nonoriginalism (or at least some versions of it) may be compatible with various strategies for moral reconciliation with the constitutional text. Need- less to say, all of this requires a great deal of simplification, but even so, it is possible to indicate in a rough way two directions in which the arguments above might lead us.